186 Iowa 759 | Iowa | 1919
II. The petition alleges, generally, that assured was a member of defendant association, and during his lifetime kept and performed all his obligations to the defendant by virtue of said membership; and that, at a time stated, a piece of brick was thrown by one Weyman, which acci
. The essential controversy arises upon affirmative defenses interposed.
The rule is stated thus in 1 Corpus Juris 442:
“The existence of an intent on the part of the person inflicting the injury is necessary, and this intent must be to inflict the injury actually inflicted; and * * * where death ensues from the injury, it is necessary that the person inflicting the injury should have had the intent to kill.”
The intent to injure or kill, on the part of the person inflicting the injury, becomes an essential part of the proof, and the infliction of the injury does not raise a presumption that it was done intentionally. Stevens v. Continental Cas. Co., 12 N. D. 463 ( 97 N. W. 862). The ease of Union Acc. Co. v. Willis, 44 Okla. 578 (145 Pac. 812), lends much support to the claim of the appellee. In that case, the death was due to a fracture of the skull from a fall on a hard pavement, and the falling was the result of a blow in the face. It is held the insurer was not released if the blow, and not the fatal result, was intentionally inflicted. In Utter v. Travelers’ Ins. Co., 65 Mich. 545, deceased was a
■ “The design intended by the terms of this policy must be the design that intended the actual result accomplished, and not the design of the act itself which resulted in the killing of one, contrary to the design of the act.”
In Richards v. Travelers Ins. Co., 89 Cal. 170, assured came to his death by a blow inflicted by a third person, while attempting to blackmail him. As to a clause similar to the one at bar, it was held proper to instruct that, if the death was- caused by this blow, there might still be a recovery if the jury believed from the evidence that, when the blow was struck, the assailant did not mean to kill the deceased; that such provisions merely relieve from a death caused by the act of one whose design was to cause death from the act, and do not include every case where a blow not intended to kill unfortunately and undesignedly produces death. In Railway O. & E. Acc. Assn. v. Drummond, 56 Neb. 235 (76 N. W. 562), assured was shot by a robber. It was held that, within the meaning of the contract, his death was accidental, so far as insured was concerned, because the court found robbery, and not death, was intended. In the case at bar, the court could properly And that, while Weyman intended to inflict an injury on Robinson by throwing the brick, that Weyman had no intention to kill.
1 We hold the trial court was warranted in holding that no “intentionally inflicted injury” releases the defendant from liability.
The remaining assignment is that it was error to reopen the case by the decree, and allow plaintiff to introduce additional evidence in chief. It is again difficult to see how such a ruling could have been prejudicial, in any event; and no serious claim is made that it was so. And what we have said as to discretion in granting a motion for a continuance applies here, as well.
We are of opinion that the decree must stand. — Affirmed. 1